Foreign Evidence and Brady: USA v Fernandez

One of our favorite cases is a case from the Eleventh Circuit, USA v Jose Fernandez, 136 F3d 1434 (11th. Cir. 1998). The defendant claimed that the Government had failed to disclose exculpatory evidence about the CIA's possible involvement in criminal activity related to the offense conduct alleged. The trial court denied the defendant's motion for new trial, and the Appellate court remanded for an evidentiary hearing.

"The government responds that Fernandez has concocted a far-fetched, imaginative theory to justify a retrial. It is worth noting, however, that the government does not deny the essential veracity of these news reports which are, by themselves, extraordinary and troubling. Although the government presented a formidable case against Fernandez at trial, it was based almost exclusively on the testimony of co-conspirators. While the uncorroborated testimony of co-conspirators can be sufficient to support a conviction, see United States v. Broadwell, 870 F.2d 594, 601 (11th Cir. 1989), our inquiry at this stage is whether evidence of the CIA’s possible link to the very drug shipments at issue in this case either reasonably might have affected the outcome of the proceeding or, in the alternative, would likely produce a different result if the case were retried. In our view, the district court too easily brushed aside the possible impact that these rather sensational allegations might have had on Fernandez’ case. Fernandez tried to establish that, due to the overall corruption in the VNG and possibly the DEA, other possible “tipsters” existed, but his case was vulnerable -- if not thoroughly implausible -- without the various bits and pieces of information needed to create a coherent alternate theory of the case.

Much of the information that Fernandez did obtain during the trial came from news reports that were never officially corroborated by the government; conversations regarding the veracity and potential implications of these news reports, moreover, consistently were held outside the presence of both the defendant and his attorney. At this stage, it is impossible to discern whether the addition of evidence of a possible CIA-link to this case would have completed the puzzle and thereby created for the jury reasonable doubt or whether, as the district court determined, the evidence was merely cumulative. In light of the fact that the government’s case against Fernandez was based almost exclusively on the testimony of co-defendants, however, and because the allegations potentially implicating the CIA are responsive directly to the defense that Fernandez attempted to present, we conclude that these allegations are, at the very least, significant enough to permi Fernandez to present his case at a hearing."